Filed 9/15/2020 by Clerk of Supreme Court

IN THE SUPREME COURT

STATE OF NORTH DAKOTA

2020 ND 200

State of North Dakota, Plaintiff and Appellee

v.

Coby Edwards, Defendant and Appellant

No. 20200044

Appeal from the District Court of Ward County, North Central Judicial 

District, the Honorable Douglas L. Mattson, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

Kelly A. Dillon, Assistant Attorney General, Bismarck, ND, for plaintiff and 

appellee. 

Richard E. Edinger, Fargo, ND, for defendant and appellant. 
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State v. Edwards

No. 20200044

Crothers, Justice.

[¶1] Coby Edwards appeals from a criminal judgment after a jury found him 

guilty of gross sexual imposition, a class AA felony. We affirm. 

I

[¶2] Edwards was charged with gross sexual imposition, a class AA felony. 

Prior to trial Edwards retained a psychologist to testify about the accuracy of 

the child victim’s memories. Trial was held on July 16-18, 2019. Shortly before 

Edwards began presenting his case, his attorney informed the district court his 

expert would not be testifying because “He could not make it today.” 

Additionally, during cross-examination of a police detective by Edwards’ 

counsel, the detective made a statement regarding Edwards’ post-arrest 

silence. The statement received no objection, nor was a motion made to strike 

the statement as non-responsive. The jury convicted Edwards of gross sexual 

imposition. 

II

[¶3] Edwards argues reversible error occurred when his retained expert did 

not testify. He argued in his brief that it was error for his expert to not testify 

at trial. During oral argument, Edwards argued the district court obviously 

erred by failing to require that his retained expert witness testify at trial. 

[¶4] Edwards sought and received funding to retain an expert witness to 

testify about the accuracy of the child victim’s memories. At trial, Edwards’ 

counsel first informed the district court the expert witness would testify, and 

the next day told the court the expert would not be testifying. No offer of proof 

was made to establish what the expert would state during testimony. Edwards 

did not otherwise discuss the issue at trial. 

[¶5] “Issues not raised at trial will not be addressed on appeal unless the 

alleged error rises to the level of obvious error under N.D.R.Crim.P. 52(b).” 

State v. Pemberton, 2019 ND 157, ¶ 8, 930 N.W.2d 125 (quoting State v. Lott, 
2

2019 ND 18, ¶ 8, 921 N.W.2d 428). “A defendant has the burden to show an 

obvious error that affects his substantial rights, and we are not required to 

exercise our discretion to notice obvious error when the defendant has not 

raised an issue about obvious error.” State v. Smith, 2019 ND 239, ¶ 15, 934 

N.W.2d 1. 

[¶6] Edwards did not brief his claim as obvious error. Moreover, no 

controlling precedent exists requiring a criminal defendant’s expert witness 

testify at trial. But see Ake v. Oklahoma, 470 U.S. 68 (1986) (explaining that 

participation of a psychiatrist may be important enough to the preparation of 

a defense to require the State to provide an indigent defendant with access to 

competent psychiatric assistance). Although we may review an issue for 

obvious error even when it has not been argued, we decline to address the 

question presented here. Smith, 2019 ND 239, ¶ 15. 

III

[¶7] Edwards argues the detective’s comments regarding Edwards’ postarrest silence constitute reversible error. The State argues testimony 

regarding Edwards’ exercise of his right to remain silent was elicited by 

Edwards’ counsel and was harmless. 

[¶8] In State v. Schneider, 270 N.W.2d 787, 792 (N.D. 1978), this Court first 

said comment on a defendant’s post-arrest silence is reviewable on appeal even 

though there was no objection at trial. Schneider involved testimony on silence, 

the responses for which were elicited by the prosecutor. Id. This Court in 

Schneider applied a harmless error analysis derived from Chapman v. 

California, 386 U.S. 18 (1967). Schneider, at 792.

[¶9] Since Schneider, the United States Supreme Court has spoken on the 

difference in analysis between Fed.R.Crim.P. 52(a) and 52(b). See U.S. v. 

Olano, 507 U.S. 725, 731-37 (1993). At its core, Olano explains that a forfeited 

error, even one affecting constitutional rights, may be noticed by an appellate 

court only if it is plain and affects substantial rights. Id. at 732. Further, Olano

distinguished between a forfeiture and a waiver, where a forfeiture is the 

failure to make the timely assertion of a right, and a waiver is the intentional 
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relinquishment or abandonment of a known right. Id. at 733. This Court 

adopted the Olano framework in 1998. See State v. Olander, 1998 ND 50, ¶¶ 

13-14, 575 N.W.2d 658 (explaining the only difference between the federal rule 

and the Court’s rule is the word “obvious” in place of “plain”). 

[¶10] Our framework for noticing a defendant’s failure to raise a claimed error 

in a timely manner requires error that is plain or obvious and affects 

substantial rights. State v. Finneman, 2018 ND 203, ¶ 13, 916 N.W.2d 619 

(citing Olander, 1998 ND 50, ¶¶ 13-14). An obvious error is a clear deviation 

from an applicable rule under current law. Olander, at ¶ 14. A defendant 

claiming a clear or obvious deviation from an applicable legal rule must show 

the deviation affected a substantial right in that it was prejudicial or affected 

the outcome of the proceeding. Id. at ¶ 15. If a defendant establishes a forfeited 

obvious error involves substantial rights, “an appellate court has discretion to 

correct the error and should correct it if it ‘seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.’” Id. at ¶ 16 (quoting 

Olano, 507 U.S. at 736). 

[¶11] The defendant has the burden of showing an obvious error affected

substantial rights, and this Court is not required to exercise its discretion to 

notice obvious error when the defendant has not raised the issue on appeal. 

Smith, 2019 ND 239, ¶ 15. Edwards did not brief his claim regarding comments 

on his post-arrest as obvious error. Although we may review an issue for 

obvious error when it has been argued but not briefed, we decline to address 

the question presented here. Id. 
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IV

[¶12] The district court judgment is affirmed. 

[¶13] Daniel J. Crothers

Lisa Fair McEvers

Jerod E. Tufte

Gerald W. VandeWalle

Jon J. Jensen, C.J.